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Who Owns That Dance Move?

On December 5th, 2018, Terrence Ferguson, better known as 2 Milly, filed a complaint in the United States District Court for the Central District of California alleging that Epic Games, Inc. committed copyright infringement and violated right of publicity and unfair competition laws by implementing the “Milly Rock” dance into their free-to-play video game Fortnite.

2 Milly gained recognition when he released the sound recording “Milly Rock” in 2015. The track appeared on the iTunes top 200 chart, with its popularity mainly stemming from the music video that accompanied its release. In the music video for “Milly Rock,” 2 Milly and his accompanying dancers swing their arms in a circle and rock their hips back and forth. This simple-yet-immediately-identifiable dance became known as the Milly Rock. The dance has since been repeated by celebrities and athletes and has become a staple in the arsenal of hip-hop dancers.

Since 2 Milly filed his complaint, two other artists have come out and filed strikingly similar complaints against Epic Games, Inc.: Russell Horning, better known as “Backpack Kid,” and Alfonso Ribeiro, recognizable for his role as Carlton Banks on The Fresh Prince of Bel-Air. Horning’s mother, on Russell’s behalf, has launched claims against Epic for their use of the “Floss Dance” in their game, and Ribeiro has done the same for Epic’s use of the “Carlton Dance.”

In 2017, Epic Games, Inc. released Fortnite, which quickly became most well known for its free-to-play “battle royale” mode. While Fortnite found its popularity in its accessible game mechanics, the game has also seen great fan recognition for its “emotes.” Emotes, or short animated sequences during which a player’s avatar dances, celebrates, or shows any other emotion on-screen, have been a significant source of revenue for Epic as the company sells these emotes for a premium virtual currency available through “micro-transactions.” While Fortnite’s most popular game mode may be free-to-play, the cosmetic items available for sale through the in-game items shop, including emotes, have made Fortnite one of the most profitable video games in history. To appeal to its young core audience, Epic Games usually takes inspiration for Fortnite’s emotes from popular dances or viral videos.

Since Fortnite’s release, the “Carlton Dance,” the “Floss Dance,” and the “Milly Rock” dance have all been incorporated into the game and made available for sale. The artists claim that Epic has taken their copyrighted choreographic routines and exploited their right of publicity without permission. Further, Russell Horning claims trademark infringement, trademark dilution, and false designation of origin.

Though the category of “choreographic works” was given explicit copyright coverage under the 1976 Copyright Act, courts, including the 9th Circuit, have not yet drawn clear lines to indicate what qualifies as a choreographic work. Legislative history and recent legal trends indicate that “social dance steps” and “simple routines” do not fall under the “choreographic works” protective umbrella; section 450.03(a) of the Copyright Office Practices, Compendium II (1984) specifies: “for example, the basic waltz step, the hustle step, and the second position of classical ballet are not copyrightable.” However, in the ever-evolving landscape of copyright law where each work is evaluated on a case-by-case basis, any of these dances could shift the paradigm regarding the inclusion of popular dances in video games. As our colleague Gregor Pryor has stated, “whether Fortnite’s emotes are an homage or infringement will remain uncertain until tested in court.”

More intriguing questions arise in the claims of violations of the artists’ respective rights of publicity. California has both common law and statutory claims for right of publicity violations. The artists are seeking relief through both of those avenues, along with unfair competition, under California law. For the artists to succeed under theses causes of action, they will need to show that the respective dances are closely linked to their likeness or “identity.” This test will require a court to examine each dance on an individualized basis to evaluate just how closely those moves are associated with the artists and their identities. There is a long history of cases citing support for First Amendment protection for video games, but ultimately the court will perform a balancing test between First Amendment implications and the artists’ rights of publicity. The fact that the depictions of the artists are not literal will be helpful for Epic’s defense.

Russell Horning is the only complainant thus far to launch a claim for trademark infringement, trademark dilution, and false designation of origin. In his complaint, Horning claims to have created the “Floss Dance.” Months ago, fans of Fortnite started their own Internet investigation to determine when the first person recorded the dance, and they have found that the dance existed long before Horning launched it into the spotlight with his performance during Katy Perry’s appearance on Saturday Night Live. Horning also claims to have a common law trademark on the term “Floss” when associated with a dance. To succeed on these claims Horning will have to convince the court that the term “Floss” is associated with products or services introduced into commerce by him.

While the plaintiffs present strikingly similar complaints and are represented by the same counsel, each one presents its own interesting question to the court. Horning claims to have created the “Floss Dance” and have a common law trademark over the dance. Ribeiro was an actor when he performed his dance, and generally, actors do not own their performances if the production studio took industry-standard steps, which will likely lead to an argument over ownership of the dance. 2 Milly’s dance has become so popular that many people may not even know where the “Milly Rock” originated.

While these Fortnite cases are the latest and loudest legal issue that Epic Games has faced over Fortnite’s in-game item shop, this is not the first time Epic has faced this issue. Though details of the out-of-court dealings have not been confirmed, Gabby David, the creator of a dance routine that was introduced into the game under the name “Electro Shuffle,” is rumored to have settled with Epic Games in early 2018 over a similar issue. Fortnite has sourced its emotes from plenty of popular dance moves, and it would not be surprising to see others like the artists that have filed complaints and Gabby David coming forward to get a piece of the Fortnite pie.

Takeaway: These three artists, though they have launched similar complaints against Epic, have very different cases. 2 Milly has a simple dance that he created that he believes was taken from him. Alfonso Ribeiro performed a dance on a show while acting, and hopes to recover for that to which he believes he has ownership rights. Russell Horning claims to have invented a dance, and although that may not be true, he arguably brought that dance into the public consciousness. Now the issue is in the hands of the legal system to answer who owns these dance moves, if anyone. Video game and other content creators may see a slew of new complaints if any of these artists are successful in their claims.